Jayne's ex'r'x v. Platt
Ohio Supreme Court
Ekrob. to the Circuit Court of Cuyahoga county. Action below was by the defendant in error against Harris Jaynes and Andrew Jaynes to recover upon an undertaking in attachment.
Read the full summary
Ekrob. to the Circuit Court of Cuyahoga county. Action below was by the defendant in error against Harris Jaynes and Andrew Jaynes to recover upon an undertaking in attachment. It was averred in the petition' that on the 25th of July, 1868, the plaintiff commenced in the Court of Common Pleas of Cuyahoga county, an action against Barney A. DeWolf, and caused an order of attachment to be issued, directed and delivered to the sheriff of said county, and that thereupon DeWolf caused an undertaking to be executed to the plaintiff by the defendants, as his sureties, in the sum of eleven thousand…
1Opinion of the CourtSpear, J.
The question is, did the amended answer state a defense to the plaintiff’s action ?
Plaintiff in error seeks a reversal of the judgment of the circuit court sustaining the demurrer, on the ground that the judgment rendered against DeWolf and in favor of Platt, was not rendered in the action in which the undertaking sued upon.was given. In other words, that the amended petition was so different from the original as to make a new action, and that, therefore, the liability of the surety was changed without his consent, whereby, upon well settled principles, he was discharged.
To sustain this…
2Cases cited4 opinions
- Methodist Churches of New York v. . BarkerNew York Court of Appeals · 1858
- Shepard v. PebblesWisconsin Supreme Court · 1875
- Lothrop v. SouthworthMichigan Supreme Court · 1858
- Sutro v. BigelowWisconsin Supreme Court · 1872